As I almost never comment upon current events, these blog entries have a timeless triviality. Sample the various years and see what interests you.

Saturday, June 29, 2013

Justice Scalia's DOMA Dissent

I read Justice Antonin Scalia's brilliant dissent against the majority ruling in the United States v. Windsor case (aka striking down the Defense of Marriage Act).Favorite quote: "To be sure (as the majority points out), the
legislation is called the Defense of Marriage Act. But to defend traditional
marriage is not to condemn, demean, or humiliate those who would prefer other
arrangements, any more than to defend the Constitution of the United States is
to condemn, demean, or humiliate other constitutions. To hurl such accusations
so casually demeans this institution."

I might have said "disgraces this institution" instead, but I'll defer to the learned Justice.

Here is Scalia's dissent, with the exception of the passages concerning the role of the Court and jurisdictional issues. See the Supreme Court website for the full dissent.

1 Cite as: 570 U. S. ____ (2013) SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 12–307

UNITED STATES,
PETITIONER v. EDITH SCHLAIN WINDSOR, IN HER CAPACITY AS EXECUTOR OF THE ESTATE OF THEA CLARA
SPYER, ET AL.

ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

[June 26, 2013]

JUSTICE SCALIA, with
whom JUSTICE THOMAS joins,and with whom THE CHIEF JUSTICE joins as to Part
I,dissenting.

This case is about power
in several respects. It is about the power of our people to govern themselves,
and the power of this Court to pronounce the law. Today’s opinion aggrandizes
the latter, with the predictable consequence of diminishing the former. We have
no power to decide this case. And even if we did, we have no power under the
Constitution to invalidate this democratically adopted legislation. The Court’s
errors on both points spring forth from the same diseased root: an exalted
conception of the role of this institution in America.

I

A

The Court is eager—hungry—to tell
everyone its view of the legal question at the heart of this case. Standing in
the way is an obstacle, a technicality of little interest to anyone but the
people of We the People, who created it as a barrier against judges’ intrusion
into their lives. They gave judges, in Article III, only the “judicial Power,”
a power to decide not abstract questions but real, concrete “Cases” and
“Controversies.” Yet the plaintiff and the Government agree entirely on what
should happen in this lawsuit. They agree that the court below got it right;
and they agreed in the court below that the court below that one got it right
as well. What, then, are we doing here?

The answer lies at the heart of the
jurisdictional portion of today’s opinion, where a single sentence lays bare
the majority’s vision of our role. The Court says that we have the power to
decide this case because if we did not, then our “primary role in determining
the constitutionality of a law” (at least one that “has inflicted real injury
on a plaintiff ”) would “become only secondary to the President’s.” Ante, at
12. But wait, the reader wonders—Windsor won below, and so cured her
injury, and the President was glad to see it. True, says the majority, but
judicial review must march on regardless, lest we “undermine the clear
dictate of the separation-of-powers principle that when an Act of Congress is
alleged to conflict with the Constitution, it is emphatically the province and
duty of the judicial department to say what the law is.” Ibid. (internal
quotation marks and brackets omitted).

That is jaw-dropping. It is an assertion of
judicial supremacy over the people’s Representatives in Congress and the
Executive. It envisions a Supreme Court standing (or rather enthroned) at the
apex of government, empowered to decide all constitutional questions, always
and everywhere “primary” in its role.

This image of the Court would have been
unrecognizable to those who wrote and ratified our national charter. They knew
well the dangers of “primary” power, and so created branches of government that
would be “perfectly coordinate by the terms of their common commission,” none
of which branches could “pretend to an exclusive or superior right of settling
the boundaries between their respective powers.” The Federalist, No. 49, p. 314
(C. Rossiter ed. 1961) (J. Madison). The people did this to protect themselves.
They did it to guard their right to self-rule against the black-robed supremacy
that today’s majority finds so attractive. So it was that Madison could
confidently state, with no fear of contradiction, that there was nothing of
“greater intrinsic value” or “stamped with the authority of more enlightened
patrons of liberty” than a government of separate and coordinate powers.

[extended discussion about the role of the Court and
lack of jurisdiction for this case]

To be sure, if Congress cannot invoke our
authority in the way that JUSTICE ALITO proposes, then its only recourse is to
confront the President directly. Unimaginable evil this is not. Our system is designed
for confrontation. That is what “[a]mbition . . . counteract[ing]
ambition,” The Federalist, No. 51, at 322 (J. Madison), is all about. If
majorities in both Houses of Congress care enough about the matter, they have
available innumerable ways to compel executive action without a lawsuit—from
refusing to confirm Presidential appointees to the elimination of funding.
(Nothing says “enforce the Act” quite like “. . . or you will have money for
little else.”) But the condition is crucial; Congress must care enough to act
against the President itself, not merely enough to instruct its lawyers to ask us
to do so. Placing the Constitution’s entirely anticipated political arm
wrestling into permanent judicial receivership does not do the system a favor.
And by the way, if the President loses the lawsuit but does not faithfully
implement the Court’s decree, just as he did not faithfully implement
Congress’s statute, what then? Only Congress can bring him to heel by . . . what
do you think? Yes: a direct confrontation with the President.

II

For the reasons
above, I think that this Court has, and the Court of Appeals had, no power to
decide this suit. We should vacate the decision below and remand to the Court
of Appeals for the Second Circuit, with instructions to dismiss the appeal. Given
that the majority has volunteered its view of the merits, however, I proceed to
discuss that as well.

A

There are many
remarkable things about the majority’s merits holding. The first is how
rootless and shifting its justifications are. For example, the opinion starts
with seven full pages about the traditional power of States to define domestic
relations—initially fooling many readers, I am sure, into thinking that this is
a federalism opinion.But we are eventually told that “it is unnecessary to decide
whether this federal intrusion on state power is a violation of the
Constitution,” and that “[t]he State’s power in defining the marital relation
is of central relevance in this case quite apart from principles of federalism”
because “the State’s decision to give this class of persons the right to marry
conferred upon them a dignity and status of immense import.” Ante, at
18. But no one questions the power of the States to define marriage (with the
concomitant conferral of dignity and status), so what is the point of devoting
seven pages to describing how long and well established that power is? Even
after the opinion has formally disclaimed reliance upon principles of
federalism,mentions of “the usual tradition of recognizing and accepting state
definitions of marriage” continue. See, e.g., ante,at 20. What to make
of this? The opinion never explains.My guess is that the majority, while
reluctant to suggest that defining the meaning of “marriage” in federal statutes
is unsupported by any of the Federal Government’s enumerated powers,4 nonetheless
needs some rhetorical basis to support its pretense that today’s prohibition of

[Footnote
4Such
a suggestion would be impossible, given the Federal Government’s long history
of making pronouncements regarding marriage—for example, conditioning Utah’s
entry into the Union upon its prohibition of polygamy. See Act of July 16,
1894, ch. 138, §3, 28 Stat. 108 (“The constitution [of Utah]” must provide
“perfect toleration of religious sentiment,” “Provided, That polygamous
or plural marriages are forever prohibited”).]

laws
excluding same-sex marriage is confined to the Fed­eral Government (leaving the
second, state-law shoe to be dropped later, maybe next Term). But I am only
guessing.

Equally perplexing are the opinion’s references
to “the Constitution’s guarantee of equality.” Ibid. Near the end of the
opinion, we are told that although the “equal protec­tion guarantee of the
Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the
more specific and all the better understood and preserved”—what can that mean?—“the
Fifth Amendment itself withdraws from Government the power to degrade or demean
in the way this law does.” Ante, at 25. The only possible interpretation
of this statement is that the Equal Protection Clause,even the Equal Protection
Clause as incorporated in the Due Process Clause, is not the basis for today’s
holding.But the portion of the majority opinion that explains why DOMA is
unconstitutional (Part IV) begins by citing Bolling v. Sharpe,
347 U. S. 497 (1954), Department of Agriculture v. Moreno, 413 U.
S. 528 (1973), and Romer v. Evans, 517 U. S. 620 (1996)—all of
which are equal protection cases.5 And those three cases are the only
authorities that the Court cites in Part IV about the Constitution’s
meaning, except for its citation of Lawrence v. Texas, 539 U. S.
558 (2003) (not an equal-protection case) to support its passing assertion that
the Constitution protects the “moral and sexual choices” of same-sex couples, ante,
at 23.

Moreover, if this is
meant to be an equal-protection opinion, it is a confusing one. The opinion
does not resolve and indeed does not even mention what had been the central
question in this litigation: whether, under the Equal Protection Clause, laws
restricting marriage to a man and a woman are reviewed for more than mere rationality.
That is the issue that divided the parties and the court below, compare Brief
for Respondent Bipartisan Legal Advisory Group of U. S. House of Representatives
(merits) 24–28 (no), with Brief for Respondent Windsor (merits) 17–31 and Brief
for United States (merits) 18–36(yes); and compare 699 F. 3d 169, 180–185 (CA2
2012) (yes), with id., at 208–211 (Straub, J., dissenting in part and
concurring in part) (no). In accord with my previously expressed skepticism
about the Court’s “tiers of scrutiny”approach, I would review this
classification only for its rationality. See United States v. Virginia,
518 U. S. 515, 567–570 (1996) (SCALIA, J., dissenting). As nearly as I can tell,
the Court agrees with that; its opinion does not apply strict scrutiny, and its
central propositions are taken from rational-basis cases like Moreno. But
the Court certainly does not apply anything that resembles that
deferential framework. See Heller v. Doe, 509 U. S. 312, 320
(1993) (a classification “‘must be upheld . . . if there is any reasonably
conceivable state of facts’” that could justify it).

The majority opinion need
not get into the strict-vs.rational-basis scrutiny question, and need not justify
its holding under either, because it says that DOMA is unconstitutional as “a
deprivation of the liberty of the person protected by the Fifth Amendment of
the Constitution,” ante, at 25; that it violates “basic due process”
principles, ante, at 20; and that it inflicts an “injury and indignity”
of a kind that denies “an essential part of the liberty protected by the Fifth
Amendment,” ante, at 19. The majority never utters the dread words
“substantive due process,” perhaps sensing the disrepute into which that
doctrine has fallen, but that is what those statements mean. Yet the opinion
does not argue that same-sex marriage is“deeply rooted in this Nation’s history
and tradition,” Washington v. Glucksberg, 521 U. S. 702, 720–721
(1997), a claim that would of course be quite absurd. So would the further
suggestion (also necessary, under our substantive-due-process precedents) that
a world in which OMA exists is one bereft of “‘ordered liberty.’” Id., at
721 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)).

Some might conclude that
this loaf could have used awhile longer in the oven. But that would be wrong;
it is already overcooked. The most expert care in preparation cannot redeem a
bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law
is invalid (maybe on equal-protection grounds, maybe on substantive due process
grounds, and perhaps with some amorphous federalism component playing a role)
because it is motivated by a “‘bare . . . desire to harm’” couples in same-sex
marriages. Ante, at 20. It is this proposition with which I will therefore
engage.

B

As
I have observed before, the Constitution does not forbid the government to
enforce traditional moral and sexual norms. See Lawrence v. Texas,
539 U. S. 558, 599 (2003) (SCALIA, J., dissenting). I will not swell the U. S.
Reports with restatements of that point. It is enough to say that the
Constitution neither requires nor forbids our society to approve of same-sex
marriage, much as it neither requires nor forbids us to approve of no-fault
divorce, polygamy, or the consumption of alcohol.However, even setting aside
traditional moral disapproval of same-sex marriage (or indeed same-sex
sex),there are many perfectly valid—indeed, downright boring—justifying
rationales for this legislation. Their existence ought to be the end of this
case. For they give the lie to the Court’s conclusion that only those with
hateful hearts could have voted “aye” on this Act. And more importantly, they
serve to make the contents of the legislators’ hearts quite irrelevant: “It is
a familiar principle of constitutional law that this Court will not strike down
an otherwise constitutional statute on the basis of an alleged illicit
legislative motive.” United States v. O’Brien, 391 U. S. 367, 383
(1968). Or at least it was a familiar principle. By holding to the
contrary, the majority has declared open season on any law that (in the opinion
of the law’s opponents and any panel of like-minded federal judges) can be
characterized as mean-spirited.

The majority concludes that the only motive for
this Act was the “bare . . . desire to harm a politically unpopular group.” Ante,
at 20. Bear in mind that the object of this condemnation is not the
legislature of some once-Confederate Southern state (familiar objects of the
Court’s scorn, see, e.g., Edwards v. Aguillard, 482 U. S.
578 (1987)), but our respected coordinate branches, the Congress and Presidency
of the United States. Laying such a charge against them should require the most
extraordinary evidence, and I would have thought that every attempt would be
made to indulge a more anodyne explanation for the statute. The majority does
the opposite—affirmatively concealing from the reader the arguments that exist
in justification. It makes only a passing mention of the “arguments put
forward” by the Act’s defenders, and does not even trouble to paraphrase or
describe them. See ante, at 21. I imagine that this is because it is
harder to maintain the illusion of the Act’s supporters as unhinged members of
a wild-eyed lynch mob when one first describes their views as they see
them.

To choose just one of these defenders’
arguments, DOMA avoids difficult choice-of-law issues that will now arise absent
a uniform federal definition of marriage. See, e.g., Baude, Beyond DOMA:
Choice of State Law in Fed- eral Statutes, 64 Stan. L. Rev. 1371 (2012).
Imagine a pair of women who marry in Albany and then move to Alabama, which
does not “recognize as valid any marriage of parties of the same sex.” Ala.
Code §30–1–19(e) (2011). When the couple files their next federal tax return,
may it be a joint one? Which State’s law controls, for federal-law purposes:
their State of celebration (which recognizes the marriage) or their State of
domicile (which does not)? (Does the answer depend on whether they were just
visiting in Albany?) Are these questions to be answered as a matter of federal
common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which
State’s? And what about States where the status of an out-of-state same-sex
marriage is an unsettled question under local law? See Godfrey v. Spano,
13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty
by specifying which marriages would be recognized for federal purposes. That is
a classic purpose for a definitional provision.

Further, DOMA preserves the intended effects of
prior legislation against then-unforeseen changes in circumstance. When
Congress provided (for example) that a special estate-tax exemption would exist
for spouses, this exemption reached only opposite-sex spouses—those
being the only sort that were recognized in any State at the time of
DOMA’s passage. When it became clear that changes instate law might one day alter
that balance, DOMA’s definitional section was enacted to ensure that
state-level experimentation did not automatically alter the basic operation of
federal law, unless and until Congress made the further judgment to do so on
its own. That is not animus—just stabilizing prudence. Congress has hardly
demonstrated itself unwilling to make such further, revising judgments upon due
deliberation. See, e.g., Don’t Ask, Don’t Tell Repeal Act of 2010, 124
Stat. 3515.

The Court mentions none of this. Instead, it
accuses the Congress that enacted this law and the President who signed it of
something much worse than, for example, having acted in excess of enumerated
federal powers—or even having drawn distinctions that prove to be irrational.
Those legal errors may be made in good faith, errors though they are. But the
majority says that the supporters of this Act acted with malice—with the
“purpose” (ante, at 25) “to disparage and to injure” same-sex
couples. It says that the motivation for DOMA was to “demean,” ibid.; to
“impose inequality,” ante, at 22; to “impose . . . a stigma,” ante, at
21; to deny people “equal dignity,” ibid.; to brand gay people as
“unworthy,” ante, at 23; and to “humiliat[e]” their
children, ibid. (emphasis added).

I am sure these
accusations are quite untrue. To be sure (as the majority points out), the
legislation is called the Defense of Marriage Act. But to defend traditional
marriage is not to condemn, demean, or humiliate those who would prefer other
arrangements, any more than to defend the Constitution of the United States is
to condemn, demean, or humiliate other constitutions. To hurl such accusations
so casually demeans this institution. In the majority’s judgment, any
resistance to its holding is beyond the pale of reasoned disagreement. To
question its high-handed invalidation of a presumptively valid statute is to
act (the majority is sure) with the purpose to “disparage,” ”injure,”
“degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow
citizens, who are homosexual. All that, simply for supporting an Act that did no
more than codify an aspect of marriage that had been unquestioned in our
society for most of its existence—indeed, had been unquestioned in virtually
all societies for virtually all of human history. It is one thing for a society
to elect change; it is another for a court of law to impose change by adjudging
those who oppose it hostes humani generis, enemies of the human race.

*
* *

The penultimate sentence of the majority’s
opinion is a naked declaration that “[t]his opinion and its holding are
confined” to those couples “joined in same-sex marriages made lawful by the
State.” Ante, at 26, 25. I have heard such “bald, unreasoned disclaimer[s]”
before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional
right to homosexual sodomy, we were assured that the case had nothing, nothing
at all to do with “whether the government must give formal recognition to any
relationship that homosexual persons seek to enter.” Id., at 578. Now we are told that DOMA is invalid
because it “demeans the couple, whose moral and sexual choices the Constitution
protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real
cheek for today’s majority to assure us, as it is going out the door, that a
constitutional requirement to give formal recognition to same-sex marriage is
not at issue here—when what has preceded that assurance is a lecture on how
superior the majority’s moral judgment in favor of same-sex marriage is to
the Congress’s hateful moral judgment against it. I promise you this: The only
thing that will “confine” the Court’s holding is its sense of what it can get
away with.

I do not mean to suggest disagreement with THE
CHIEF JUSTICE’s view, ante, p. 2–4 (dissenting opinion), that lower
federal courts and state courts can distinguish today’s case when the issue
before them is state denial of marital status to same-sex couples—or even that
this Court could theoretically do so. Lord, an opinion with such
scatter-shot rationales as this one (federalism noises among them) can be
distinguished in many ways. And deserves to be. State and lower federal courts
should take the Court at its word and distinguish away.

In my opinion, however, the view that this Court
will take of state prohibition of same-sex marriage is indicated beyond
mistaking by today’s opinion. As I have said, the real rationale of today’s
opinion, whatever disappearing trail of its legalistic argle-bargle one chooses
to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’” couples
in same-sex marriages. Supra, at 18. How easy it is, indeed how
inevitable, to reach the same conclusion with regard to state laws denying
same-sex couples marital status. Consider how easy (inevitable) it is to make
the following substitutions in a passage from today’s opinion ante, at
22:

“DOMA’s This
state law’s principal effect is to identify a subset of state-sanctioned
marriages constitutionally protected sexual relationships, see Lawrence,
and make them unequal. The principal purpose is to impose inequality, not
for other reasons like governmental efficiency. Responsibilities, as well as
rights, enhance the dignity and integrity of the person. And DOMA this
state law contrives to deprive some couples married under the laws of
their State enjoying constitutionally protected sexual relationships,
but not other couples, of both rights and responsibilities.”

Or try this passage,
from ante, at 22–23: “[DOMA] This state law tells those
couples, and all the world, that their otherwise valid marriages relationships
are unworthy of federal state recognition.This places
same-sex couples in an unstable position of being in a second-tier marriage relationship.
The differentiation demeans the couple, whose moral and sexual choices the
Constitution protects, see Lawrence, . . . .”

Or this, from ante, at
23—which does not even require alteration, except as to the invented number:
“And it humiliates tens of thousands of children now being raised by same-sex
couples. The law in question makes it even more difficult for the children to
understand the integrity and closeness of their own familyand its concord with
other families in their community and in their daily lives.”

Similarly transposable passages—deliberately
transposable, I think—abound. In sum, that Court which finds it so horrific
that Congress irrationally and hatefully robbed same-sex couples of the
“personhood and dignity” which state legislatures conferred upon them, will of
a certitude be similarly appalled by state legislatures’ irrational and hateful
failure to acknowledge that “personhood and dignity” in the first place. Ante,
at 26. As far as this Court is concerned, no one should be fooled; it is
just a matter of listening and waiting for the other shoe.

By
formally declaring anyone opposed to same-sex marriage an enemy of human
decency, the majority arms well every challenger to a state law restricting
marriage to its traditional definition. Henceforth those challengers will lead
with this Court’s declaration that there is “no legitimate purpose” served by
such a law, and will claim that the traditional definition has “the purpose and
effect to disparage and to injure” the “personhood and dignity”of same-sex
couples, see ante, at 25, 26. The majority’s limiting assurance will be
meaningless in the face of language like that, as the majority well knows. That
is why the language is there. The result will be a judicial distortion of our
society’s debate over marriage—a debate that can seem in need of our clumsy
“help” only to a member of this institution.

As to that debate: Few public controversies touch
an institution so central to the lives of so many, and few inspire such
attendant passion by good people on all sides.Few public controversies will
ever demonstrate so vividly the beauty of what our Framers gave us, a gift the
Court pawns today to buy its stolen moment in the spotlight: a system of
government that permits us to rule ourselves. Since DOMA’s passage,
citizens on all sides of the question have seen victories and they have seen
defeats. There have been plebiscites, legislation, persuasion, and loud
voices—in other words, democracy. Victories in one place 25 Cite as: 570 U. S.
____ (2013) for
some, see North Carolina Const., Amdt. 1 (providing that “[m]arriage between
one man and one woman is the only domestic legal union that shall be valid or
recognized in this State”) (approved by a popular vote, 61% to 39% on May 8,
2012),6 are
offset by victories in other places for others, see Maryland Question 6
(establishing “that Maryland’s civil marriage laws allow gay and lesbian
couples to obtain a civil marriage license”) (approved by a popular vote, 52%
to 48%, on November 6, 2012).7 Even in a single State, the
question has come out differently on different occasions. Compare Maine
Question 1 (permitting “the State of Maine to issue marriage licenses to
same-sex couples”) (approved by a popular vote, 53% to 47%, on November 6, 2012)8 with
Maine Question 1 (rejecting “the new law that lets same-sex couples marry”)
(approved by a popular vote, 53% to 47%, on November 3, 2009).9

In the majority’s telling,
this story is black-and-white: Hate your neighbor or come along with us. The
truth is more complicated. It is hard to admit that one’s political opponents
are not monsters, especially in a struggle likethis one, and the challenge in
the end proves more than today’s Court can handle. Too bad. A reminder that
disagreement over something so fundamental as marriagecan still be politically
legitimate would have been a fit task for what in earlier times was called the
judicial temperament. We might have covered ourselves with honor today, by
promising all sides of this debate that it was theirs to settle and that we
would respect their resolution.We might have let the People decide.

But that the majority will not do. Some will rejoice
in today’s decision, and some will despair at it; that is the nature of a
controversy that matters so much to so many. But the Court has cheated both
sides, robbing the winners of an honest victory, and the losers of the peace
that comes from a fair defeat. We owed both of them better. I dissent.